South Australian Current Acts South Australian Current ActsSchedule—Casual Mall Licensing Code
(1) In this Schedule,
unless the contrary intention appears—
adjacent lessee , in relation to a casual mall licence area, means a lessee of
a retail shop that is in the same retail shopping centre and is situated in
front of or immediately adjacent to the casual mall licence area;
casual mall licence means an agreement under which a person grants, or agrees
to grant, to another person a right to occupy a designated part of a mall area
for the purposes of the sale of goods or the supply of services to the public,
where the total number of days the person is permitted to occupy the area does
not exceed 180 days;
casual mall licence area , in relation to a casual mall licence, means the
part of the mall area in respect of which a person is granted a right of
occupancy under the casual mall licence;
casual mall licence plan —see clause 2(2);
casual mall licence policy —see clause 2;
centre court means a part of a mall area designated as a centre court by the
lessor in a casual mall licence policy in accordance with clause 2;
common area does not include parking areas, loading docks, plant rooms,
customer service areas, stairways, escalators, travelators, lifts, lift wells,
toilets, restrooms, seating areas, food courts, stage areas, entertainment
areas, or lifestyle precincts;
competitor —see subclause (2);
external competitor —see subclause (3);
internal competitor —see subclause (4);
mall area means a part of the common area of a retail shopping centre
accessible to the public that is bordered wholly or partly by the shopfronts
of retail shops;
non-specific outgoings means outgoings to which section 34 applies;
sales period means a period not exceeding four weeks fixed from time to time
by the lessor as a period during which the lessor promotes a sales event in
the retail shopping centre;
special event means a community, cultural, arts, entertainment, recreational,
sporting, promotional or other similar event that is to be held in the
retail shopping centre over a limited period of time.
(2) For the purposes
of this Schedule—
(a) in
the case of the sale of goods—a person is a competitor of another person
if more than 50 per cent (on a floor area occupied by display basis) of the
goods displayed for sale by the person are of the same general kind as more
than 20 per cent (on a floor area occupied by display basis) of the goods
displayed for sale by the other person;
(b) in
the case of the supply of services—a person is a competitor of another
person if the person competes with the other person to a substantial extent.
(3) For the purposes
of this Schedule, a person granted a casual mall licence is an external
competitor of a lessee of a retail shop if the person is, in the business
conducted in the casual mall licence area, a competitor of the lessee but is
not a lessee of another retail shop in the same retail shopping centre.
(4) For the purposes
of this Schedule, a person granted a casual mall licence is an internal
competitor of a lessee of a retail shop if the person is, in the business
conducted in the casual mall licence area, a competitor of the lessee and is a
lessee of another retail shop in the same retail shopping centre.
(1) A lessor must not
grant a casual mall licence in respect of a retail shopping centre unless the
lessor has prepared a document that sets out the lessor's policy in respect of
the granting of casual mall licences for the shopping centre (a casual mall
licence policy ).
(2) The casual mall
licence policy must include the following:
(a) a
floor plan (a casual mall licence plan ) that clearly shows—
(i)
the mall areas within the shopping centre in respect of
which casual mall licences may be granted, and the dimensions of those areas;
and
(ii)
the part of the mall area within the shopping centre
designated as the centre court (if any), and the dimensions of that area;
(b) the
number of sales periods for the shopping centre in each accounting period;
(c) a
statement whether the lessor reserves the right to grant casual mall licences
otherwise than in accordance with clauses 4, 5 and 6 in respect of
special events in the shopping centre.
(3) The following
provisions apply to the designation of an area as a centre court in a casual
mall licence policy:
(a) only
one part of the mall area of the shopping centre may be designated as a centre
court at any one time;
(b) the
area designated as a centre court must not exceed 20 per cent of the total
common area of the shopping centre.
(4) If a lessor amends
a casual mall licence policy, the lessor must—
(a) give
written notice of the amendment to the lessees of the shopping centre and the
place and times at which a copy of the amended policy may be inspected; and
(b) in
the case of a lessee who may reasonably be considered to be affected by the
amendment—provide a copy of the amended policy to the lessee; and
(c)
otherwise provide a copy of the amended policy to a lessee on request.
(5) An amendment to a
casual mall licence policy does not take effect until 30 days after the
lessees of the shopping centre have been notified in accordance with
subclause (4)(a).
(1) A lessor must not
grant a casual mall licence in respect of a retail shopping centre unless the
lessor has given each person who is a lessee of a retail shop in the shopping
centre the following information:
(a) a
copy of the casual mall licence policy in force in respect of the shopping
centre; and
(b) a
copy of this Schedule; and
(c) the
person nominated by the lessor to deal with complaints about casual mall
licences (whether described by name or the title of the person's position) and
the person's contact details.
(2) The information
required under subclause (1) must have been given to a person—
(a) in
the case of a person who has entered into a retail shop lease after the
commencement of this Schedule—at the time the disclosure statement for
the lease was provided to the person under Part 3; or
(b) in
any other case—not less than 14 days before the first granting of a
casual mall licence in respect of the shopping centre after the commencement
of this Schedule.
4—Obligations of lessor relating to casual mall licence policy
(1) A lessor must not
grant a casual mall licence except in accordance with the casual mall licence
policy as in force in respect of the retail shopping centre at the time the
licence is granted.
(2) A lessor must not
grant a casual mall licence in respect of an area that is not included in a
casual mall licence plan as in force in respect of the retail shopping centre
at the time the licence is granted.
(3) A lessor must not
amend a casual mall licence policy except in accordance with this Schedule.
(1) A lessor must
ensure that the business conducted by the holder of a casual mall licence in
respect of a retail shopping centre does not substantially interfere with the
sightlines to a lessee's shopfront in the shopping centre.
(2) Subclause (1)
does not apply in relation to a lessee if the lessor, before the grant of the
casual mall licence, and after informing the lessee of the proposal to grant a
licence that might result in interference of a kind referred to in
subclause (1), obtained the written consent of the lessee to the grant of
the licence.
(1) A lessor must not
grant a casual mall licence that results in the unreasonable introduction of
an external competitor of an adjacent lessee.
(2) A lessor must not
grant a casual mall licence that results in the unreasonable introduction of
an internal competitor of an adjacent lessee unless—
(a) the
internal competitor is a lessee of a retail shop situated in the same retail
precinct as the casual mall licence area, or if the shopping centre is not
divided into precincts, in the vicinity of the casual mall licence area; or
(b) the
casual mall licence area is the area closest to the internal competitor's
retail shop that is available for the casual mall licensing at the time the
casual mall licence is granted; or
(c) the
term for which the casual mall licence is granted falls within a sales period
fixed by the lessor in respect of the shopping centre, there having been no
more than five previous sales periods in the preceding period of twelve
months; or
(d) the
casual mall licence area is within the centre court of the shopping centre.
(3) Subclause (2)
does not apply in relation to an adjacent lessee if the lessor, before the
grant of the casual mall licence, and after informing the lessee of the
proposal to grant a licence that will result in the introduction of an
internal competitor of the lessee, obtained the written consent of the lessee
to the grant of the licence.
(4) For the purposes
of subclauses (1) and (2), the introduction of a competitor of an
adjacent lessee is unreasonable if it has a significant adverse effect on the
trading of the adjacent lessee in the adjacent lessee's retail shop.
(5) Subclause (4)
is not to be taken as limiting the circumstances in which the introduction of
a competitor of an adjacent lessee might be regarded as being unreasonable.
Clauses 4, 5, and 6 do not apply to casual mall licences granted in
respect of a special event provided that the lessor—
(a)
reserved the right in the casual mall licence policy to grant casual mall
licences otherwise than in accordance with those clauses; and
(b) gave
the lessees of the retail shopping centre not less than 24 hours written
notice containing details of the special event and its duration.
8—Adjustment of outgoings
The lessor must, before making an adjustment after the end of an accounting
period in accordance with the provision of a retail shop lease implied by
section 33, reduce the total amount of the non-specific outgoings to
which all lessees of retail shops in the retail shopping centre are liable to
contribute in respect of the accounting period by an amount calculated in
accordance with the following formula in relation to each casual mall licence
granted by the lessor permitting trade in the casual mall licence area during
the accounting period:
where—
R = the amount of the reduction;
TO = the total amount of the non-specific outgoings to which all lessees of
retail shops in the shopping centre are liable to contribute in respect of the
accounting period;
TLA = the total of the lettable areas of all the retail shops in the shopping
centre in square metres;
TD = the total number of days in the accounting period;
CMLD = the number of days during which the person granted the casual mall
licence was permitted to trade in the casual mall licence area during the
accounting period;
CMLA = the casual mall licence area in square metres.
9—Rectification of certain breaches
No proceedings are to be taken or continued against a lessor in respect of a
breach of clause 5, 6 or 8 unless the lessor fails to rectify the breach
as soon as reasonably practicable after being requested in writing to do so by
a lessee who is directly affected by the breach.